The right of superficies under Czech law

The right of superficies (known elsewhere as bail à construction or Erbbaurecht) is a legal instrument that entitles one to have a building or other structure placed on someone else's land. However, the building or other structure constructed on another’s land on the basis of the right of superficies does not become an inseparable and constituent part of the land and is legally separated from the land.

More typical in jurisdictions like Germany, Austria or Switzerland, the right of superficies applies in situations where a person wishes to build on a plot of land that is owned by someone else. The right of superficies is a break from the rule of accession (also known as the superficies solo cedit principle) which is the ancient Roman law principle according to which all buildings and structures on a plot of land that are firmly affixed to the ground are an inseparable and constituent part of that plot of land. Czech law similarly states that a building is a inseparable and constituent part of the underlying plot of land, and not a separate unit of real property. This means that acquisitions do not require a double transfer, involving the conveyance of the building itself and of individual plots of land. A building is not an object of ownership right and thus cannot be conveyed separately but only with transferring the plot of land concerned. Some exceptions to the rule of accession persist, they include e.g. right of superficies, underground structures with an independent purpose and utility supply networks, including operationally connected equipment. However, the right of superficies is by its nature a time-limited deviation from the above rule of accession.

The right of superficies entitles a person to erect a building or other structure on land belonging to another person. A building or other structure constructed based on the right of superficies, does not become inseparable and constituent part of the land.

What does a right of superficies mean?

The right of superficies is a real property right (a right in rem) with the nature of an immovable thing and becomes a separate legal title for the right to establish (to place, construct and use) a building or other structure on someone else's land. The content of the right of superficies is always the right to use someone else's land for the purpose of preparation, construction and subsequent use of the building or other structure), which at the extinction of the right of superficies becomes the property of the owner of the land by means of accession.

In the case of the right of superficies, it is a legal relationship between the holder of the right of superficies and the owner of the land. The right of superficies is regulated in Section 1240 et seq. of Act No. 89/2012 Coll., the Civil Code, as amended (the "Civil Code"). Pursuant to Section 1240 (1) of the Civil Code, land may be encumbered by a real property right (a right in rem) of another person to have a building or other structure on or under the surface of the land. It does not matter whether the building or other structure is already constructed (existing) or not. However, it is important to distiquish the building itself and the right of superficies: a building or other structure constructed on someone else's land on the basis of a right of superficies does not become an inseparable and constituent part of the land on which it is placed (which would normally be result of the rule of accession) and it does not become a separate immovable thing either. Such a building or other structure cannot be disposed of independently, it cannot be sold, donated, nor can a property right (right in rem) be established to it, etc. and such a building or other structure (material substance) becomes (merely) a part of the right of superficies. The destruction of the building or other structure does not affect the existence of right of superficies and such right will survive such destruction and will continue.

On the contrary, the right of superficies becomes a separate immovable thing (as a certain legal fiction) under the Civil Code, since according to the provisions of Section 1242 of the Civil Code, "the right of superficies is an immovable thing. A construction complying with the right of superficies is part of it, but is also subject to the provisions on immovable property." A right of superficies (but not a building itself or other structure established on the basis of a right of superficies) can, for example, be sold, donated, leased or mortgaged. The Civil Code imposes mutual pre-emption rights on the owner of the land and the superficiary.

The right of superficies can also be established for an existing (already existing and constructed) building or other structure (e.g. reconstruction of an existing building and its further use). However, it must always be the entire building, as the right of superficies cannot be established for only a part of the building (for example, one wing or a floor thereof).

Always temporary in nature, the right of superficies may be granted for a maximum of 99 years.

The law allows for the establishment of a right of superficies even at the stage when there is no zoning or building permit issued. This simplifies real estate transactions. However, it places higher demands on the base building specifications (e.g. volumes and quality standards) of the building or other structure to be constructed on the basis of the right of superficies.

Superficiary

The person in whose favour the right of superficies is established and who is a holder of this right is referred to by the Civil Code as the "superficiary" (stavebník) (also known as "builder" or "grantee"), while the other (usually contractual) party is referred to as the owner of the land (also known as "grantor").

The land

A distinction has to be made between the building or other structure that will become an inseparable and component part of the right of superficies and the land that is encumbered with the right of superficies. It is the principle of the Civil Code, that despite establishment and creation of the right of superficies, the encumbered  land  continues to remain in the ownership of the owner of the land and will not come into the ownership of the superficiary. Within the encumbered land it is also to be distinguished between the build-up part of the land (part of the land on which the building or other structure is placed) and the remaining parts of the land (i.e. parts on which a building or other structure will not be placed).

In addition, as the case may be, the right of superficies may be extended to the adjacent lands.

As the holder of the right of superficies, the superficiary may use and enjoy the buildings or other structures (that form part of the right of superficies) exclusively and receive all of their fruits (e.g. rental payments from tenants). The owner of the land has no right to use and enjoy such buildings or other structures.

However, the superficiary’s rights are not restricted only to the building or other structure that is placed on the land, but they also relate to the remaining parts (other than built-up parts) of the land on which the building or other structure is placed and constructed. Although it is still owned by the owner of the land, the superficiary is entitled to use and enjoy these remaining parts (other than built-up parts) of the land as usufructury. The superficies contract by which the right of superficies has been established, may grant the superficiary more rights and powers with regard to the use of the land.

The right of superficies need not apply to only one plot of land (i.e. land on which the building or other structure is placed). This is reflected in the provision of Section 1240 (2) of the Civil Code, according to which the right of superficies may be established in such a way that it extends to adjacent land on which the building or other structure is not placed and which serves for its better use (e.g. adjacent land forming a garden, walk over the land in order to get access to the buildings or other structures).

The right of superficies is transferable and inheritable. The right of superficies can be encumbered (e.g. by a mortgage) or leased. In the case of transfer of the right of superficies, it is not the building or other structure itself (per se) that is being transferred, but the right of superficies (as a specific legal regime having the nature of a immovable thing).

Building or other structure

As mentioned above, a building or other structure becomes an inseparable and component part of the right of superficies, but only if it has been placed rightfully, i.e. if such building or other structure complies with the requirements set forth in the superficies contract, namely with technical and quality standards or base building specifications including its volumes. If a building other than the one that corresponds to the description in the superficies contract was actually placed and constructed, it would not become part of the right of superficies. It would become by operation of law (unintentionally) an inseparable and component part of the land on which it is placed. It would therefore become as an inseparable and component part of the land the property of the owner of the land. The Civil Code does not expressly address this legal situation. There are two possible scenarios in this situation. The owner of the land will retain the building in return for compensation or seek removal of the building at the superficiary's expense.

Establishment and creation of the right of superficies

Pursuant to Section 1243 of the Civil Code, the right of superficies is established by contract, by prescription (i.e. the superficiary has exercised the right for certain period of time) or, if the law so provides, by a decision of a public authority.

The right of superficies is not created automatically upon conclusion of the contract itself, but only upon registration of the right of superficies with the land registry (katastr nemovitostí) kept by the cadastral office (katastrální úřad). Thus, in this case, the law distinguishes between establishment (zřízení) and creation (vznik) of the right of superficies and the right of superficies is created upon its registration with the land registry. A right of superficies established by a decision of a public authority is also subject to subsequent registration with the land registry.

The most customary title for the establishment of the right of superficies will be the superficies contract (smlouva o zřízení práva stavby). Pursuant to the provision of Section 560 of the Civil Code, this type of contract must be in writing. Although the Civil Code does not explicitly state the essential provisions of the superficies contract, they can be inferred quite clearly. This is mainly the expression of the will by the owner of the land to establish the right of superficies on his/her land, designation of the land concerned, description of the building or other structure (future or existing), determination of the term of the right of superficies and determination of the amount of consideration (if not agreed to be without consideration). All these essentials are obligatory. In recent years, certain Czech cadastral offices have required as essential that the purpose of the establishment of the right of superficies is expressly stated in the superficies contract.

The owner of the land and the superficiary have mutual statutory pre-emption rights in relation to each other.

In addition, it is customary in real estate transactions that the superficies contracts also contain a number of other optional provisions, some of which are also referred to in the Civil Code. Typical optional provisions include, for example, the obligation of the superficiary to perform the construction work according to certain technical and quality standards including for example the volume within which the building or other structure is permitted to be constructed; the obligation of the superficiary to fully complete the construction works or to reach a practical completion within a certain period of time; the obligation of the superficiary to obtain all public law permits; the obligation of the superficiary to insure the building or other structure; the right of the owner of land to approve in advance certain factual or legal acts of the superficiary (e.g. to lease the building); the rules for maintenance and use of a building or other structure; the conditions of reconstruction in the case of destruction of the building or other structure; the obligation of the superficiary to pay contractual penalties; the obligation of the superficiary to transfer, upon certain conditions, the right of superficies to the owner of the land; the obligation of the owner of the land to pay the compensation to the superficiary for the building or other structure upon the extinguishment of the right of superficies; the obligation of the superficiary to pay taxes; the grant of preferential right to the superficiary to renew the right of superficies after its extinguishment; and the obligation of the owner of the land to sell the land to its current superficiary.

The Civil Code provides for the possibility to modify and adjust the superficiary's rights to the land. The contractual arrangement may contain a different regulation of the statutory mutual pre-emption right of the owner of the land and superficiary in relation to the right of superficies and the land (compared to statutory terms and conditions set forth in the Civil Code) and reservation rights relating to the superficiary's ability to encumber the right of superficies (the obligation to obtain the prior consent of the owner of the land).

According to Section 1246 of the Civil Code, the right of superficies cannot include or be limited by a resolutive condition (rozvazovací podmínka); if a resolutive condition has been included, such a condition is null and void; however, it should not invalidate the other provisions of the superficies contract. This regulation is based on the principle of the minimum necessary degree of legal certainty and was also included in historical laws. For example, without this principle, the mortgage creditor would be in uncertainty for the entire term of the mortgage as to whether or not the resolutive condition in the superficies agreement (which may depend only on the will of the superficiary or a third party) would occur, and thus in uncertainty as to the existence of his/her mortgage right. 

Pursuant to Section 1241 of the Civil Code, the right of superficies cannot be established on a plot of land the use of which is restricted by a right contrary to the purpose of the building or the structure to be erected under the right of superficies (e.g. in a protection zone or if an easement prohibiting development of plot of land applies or if other similar restrictions affects the land).

The right of superficies may be established for consideration or even without any consideration; in either case, it is registered with the land registry. While the right of superficies is active, the superficiary as a holder of the right of superficies has the same rights to the building or other structure as owner, and it has a duty to maintain the building or other structure in good condition.

If the plot of land on which the right of superficies shall be established is already encumbered by a mortgage right, a right of superficies may only be established with the prior consent of the mortgage creditor.

Term

Maximum term

The essential principle of the right of superficies is its temporary nature. According to Section 1244 of the Civil Code, the right of superficies may only be established as a temporary real property right (a right in rem) and it may not be established for more than 99 years. The last day of the term must be recorded in the land registry. The determination of the term of the right of superficies is an obligatory essential provision of the superficies contract.

At the same time, the Civil Code sets forth that if the superficiary has acquired the right of superficies by prescription, he/she acquires it for a period of 40 years, but if there are justifiable reasons (to be considered by court) for this, the court may shorten or extend this statutory term, upon the proposal of the party concerned (i.e. the superficiary or the owner of the land). The right to seek such a change of the statutory term is time-limited by the general limitation period.

Czech law therefore limits the maximum term of the right of superficies, but does not set a minimum duration of the right of superficies.

Extension

Pursuant to Section 1245 of the Civil Code, the initial term of the right of superficies may be extended afterwards. The lawmaker probably had in mind that the initial term of the right of superficies could be extended afterwards (only) for rights of superficies that were established for a period of less than 99 years. If that is the case then, when extending the initial term afterwards, the entire term of the right of superficies may not exceed 99 years.  However, it is not entirely clear from the wording of the Civil Code whether or not it is possible to exceed the maximum statutory period of 99 years when extending the initial term of the right of superficies. If a longer term than the maximum statutory period of time is agreed upon, this would result in the contract being null and void, as the law does not provide a legal presumption that the maximum possible term (99 years) of the right of superficies is to be applied to this situation.

Of course, nothing prevents the parties (or successors in title) from concluding a new (subsequent) superficies contract (in this case to an existing building or other structure) after the expiry of the initial maximum term. This new right of superficies shall be however registered with the land registry and shall not exceed the maximum statutory period of 99 years.

Pursuant to Section 1245 of the Civil Code, the initial term of the right of superficies that was established for a period of less than 99 years may be extended afterwards only with the consent of the persons for whom lower ranking encumbrances (compared to the right of superficies) are registered on the land.

Waiver of the right of superficies

The Civil Code regulates the so-called "waiver of the right of superficies". Pursuant to Section 1248 of the Civil Code, if the superficiary waives the right of superficies, the owner of the land may transfer the right of superficies to himself/herself or to another person on the basis of documents proving such transfer for a remaining period of the initially agreed term that has not yet expired. In such a case, the right of superficies is not extinguished (this right continues to exist), but is transferred to the owner of the land or to another person. In this scenario the owner of the land owns his/her land and at the same time owns also the right of superficies. The practical impact of this regime is the possibility for the owner of the land to dispose of the right of superficies (i.e. to transfer it to a third party) without necessity to establish and create the new right of superficies.

Extinction of the right of superficies by termination of the superficies contract

The law does not prohibit an agreement between the parties to terminate the right of superficies earlier than originally envisioned. In such a case, the right of superficies (as opposed to a waiver of the right of superficies) is extinguished and is not transferred to the landowner. For reasons of legal caution, it is necessary to recall that the provisions of Section 1255 of the Civil Code on the obligation of the owner of the land to provide compensation to the superficiary (see below) do not apply in the case of early termination of the right of superficies by agreement. The parties should take this situation into account in their contractual arrangement.

Protection of third parties rights

The law protects the rights of third parties (e.g. mortgage creditors) in connection with early termination of the right of superficies. Pursuant to Section 1249 of the Civil Code, if the right of superficies is extinguished before its originally agreed-upon term (registered with the land registry) has expired and if such right of superficies is encumbered with a property right (a right in rem) (e.g. mortgage right, easement or real burden) registered with the land registry, the legal consequences of the deletion of the right of superficies against such registered property right (a right in rem) held by a third person (e.g. mortgage creditor), shall occur only upon the extinction of such property right (a right in rem). In fact, the cadastral office will not delete such right of superficies from the land registry, such right will continue to be registered and the legal consequences of the deletion will not occur. However, if the person concerned (e.g. mortgage creditor) consents to the deletion of the right of superficies from the land registry, the legal consequences of the deletion of the right of superficies occurs also against his/her property right (right in rem) (e.g. mortgage right).

Consequences of the extinction of a right of superficies

The extinction of the right of superficies has very serious consequences. Upon extinction of the right of superficies, the building or other structure becomes automatically by operation of law due to the rule of accession an inseparable and constituent part of the land and ceases to be part of the right of superficies.

As the right of superficies is legally treated as an immovable thing, it will often be subject to a mortgage. With the extinction of the right of superficies, its encumbrances shall also extinguish. It is for this reason that a creditor securing such a mortgage must take into account the limited duration of the mortgage. This will also be the case for other encumbrances (e.g. easements relating to the right of superficies). However, such encumbrances in rem (mortgage, easement, real burden), unlike leases, cannot relate to a building or other structure that is not an independent immovable thing but merely a part of the right of superficies. Thus a mortgage or certain easements may encumber the right of superficies, not the building as such.

The extinction of the right of superficies does not automatically lead to the extinction of the leases of the building or other structure. Thus, the leases do not terminate when the building passes due to the principle of accession from the sphere of ownership of the superficiary (as a part of the right of superficies) to the sphere of ownership of the owner of the land (as an inseparable and constituent part of the land), and such change of the ownership does not constitute grounds for termination of existing leases. The situation would be different in the case of a lease over the entire right of superficies (not over the building only as a part thereof). Then of course the lease of the entire right of superficies would also be extinguished along with extinction of the right of superficies.

The parties may agree that upon extinction, the superficiary must remove the building or other structure at his own expense. An option right may be agreed upon and granted to the owner of the land to decide within certain period of time following extinction of the right of superficies whether or not the building or other structure should be removed.

Legal relations from the right of superficies

Basic rights and obligations

The content of the right of superficies is mainly the right of the superficiary to establish a building or other structure on someone else's land and to use (exclusively) the established building or other structure and the land. As mentioned above, this is in its nature a temporary right. This right will normally be established as a right for consideration. There will be many partial rights and obligations between the parties, the content of which will be set forth in the superficies contract.

After the right of superficies expires, the building or other structure will automatically become part of the underlying land on which it was placed and in fact the property of the owner of the land. The owner of the land must provide the superficiary with compensation equal to half the building’s value at the time when the right of superficies expired, unless the parties agree otherwise.

Although the building or other structure constructed under the right of superficies is not a separate immovable thing, but merely a part of the right of superficies, according to Section 1250 of the Civil Code, the superficiary has the same rights in relation to the building or other structure as if he/she would own such building or structure, e.g. the right to lease it; however this applies only if it has been placed rightfully (if such building or other structure complies with the requirements set forth in the superficies contract, e.g. with technical and quality standards or base building specifications including its volumes). As for a different use of the land encumbered by the right of superficies, the superficiary has the same rights as the usufructuary, unless otherwise agreed in the superficies contract.

According to Section 1251 of the Civil Code, the superficies contract may require the superficiary to complete the construction works within a certain period of time and unless otherwise agreed the superficiary is obliged to maintain the building or other structure in good conditions. The superficies contract may also require the superficiary to insure the building or other structure. The parties may set forth the obligation of the superficiary to remove the building or other structure upon extinction of the right of superficies or within certain period of time following the extinction of the right of superficies.

Disposition of the right of superficies

The right of superficies is transferable and inheritable. The right of superficies can be encumbered (e.g. by a mortgage) or leased. In the case of transfer of the right of superficies, it is not the building or other structure itself (per se) that is being transferred, but the right of superficies (as a specific legal regime having the nature of a immovable thing). In the case of a mortgage over the right of superficies, the mortgage expires upon the expiry of the term for which the right of superficies was established. This is also one of the main reasons why the law requires that the last day (long stop date) of the term of the right of superficies be clearly recorded in the land registry.  

Reservation of rights

The Civil Code provides that the owner of the land may reserve the right to approve particular factual or legal acts of the superficiary (e.g. leases), but even if it is reserved the owner of the land cannot withhold approval of a legal act that is not to his/her detriment. It is not entirely clear from the Civil Code what legal consequences would be of the owner of the land withholding consent in cases where this is not to the detriment of the owner of the land.

Reservation of the right to grant prior consent to encumber the right of superficies

As a specific legal regime, the Civil Code expressly allows the owner of the land to reserve the right to require his granting of prior consent before encumbering the right of superficies. If the owner of the land reserves the right to require prior consent to encumber the right of superficies, this reservation shall be registered with the land registry. In such a case, the encumbrance of the right of superficies can only be registered with the land registry if the prior consent is granted by the owner of the land. In this case, unlike to the right of the owner of the land to approve other factual or legal acts of the superficiary (e.g. leases), the owner of land is not obliged to grant such approval with encumbrance of the right of superficies, even if it is not to the detriment of the owner of the land.

Statutory pre-emption right

The owner of the land and the superficiary have mutual statutory pre-emption rights in relation to each other. Pursuant to Section 1254 of the Civil Code, the superficiary has a statutory pre-emption right to the land and the owner of the land has a statutory pre-emption right to the right of superficies. Thus, if the owner of the land intends to sell his/her land to a third party, he/she must offer it to the superficiary under the same terms and conditions as offered by a third person, and vice versa. If the parties agree upon different rights and obligations relating to pre-emption right (different than those ensuing from the Civil Code), e.g. different method of calculating the purchase price to be paid under the pre-emption right, this shall be registered in the land registry. The statutory pre-emption right is based on the principle that the different ownership (split of ownership) of the land and the building or other structure on it (which is, despite its material substance, not a separate immovable thing but merely a part of the right of superficies) should be an exception in the long term perspective. 

Consideration for the establishment of the right of superficies

The consideration for the establishment of the right of superficies can be freely agreed upon without limitations. The right of superficies can also be established without consideration. The payment of consideration may be set either as a lump sum payment or as a payment paid periodically in instalments, for instance once a month or a year (the so-called "ground fee" or "ground rent" (stavební plat)). Pursuant to Section 1247 of the Civil Code, if the right of superficies was agreed upon for consideration as a ground fee, the right of superficies is by operation of law encumbered as an real burden (reálné břemeno). This means, that in the event of default in payment of the instalment of the ground fee, the owner of land will have the right to seek payment both from the person who was the original holder of the right of superficies (original superficiary) at the time when the debt matured and from the new holder of the right of superficies (new superficiary) as a legal successor.

The Civil Code expressly provides that an agreement under which the amount of the ground fee depends on an uncertain future circumstances shall be null and void; this does not apply if the arrangement makes the amount of the ground fee dependent on the rate of appreciation and depreciation of money (i.e. according to a particular inflation or deflation rate). On the other hand, arrangements, for example, whereby the amount of the ground fee depends on the future market value of the real estate (generally) or of the land encumbered with the right of superficies, are prohibited under Czech law.

Compensation upon extinction

If a right of superficies extinguishes due to expiry of its term, the owner of the land shall pay the superficiary compensation for the building or other structure which remains on the land. As mentioned above the building or other structure automatically becomes (due to the rule of accession) an inseparable and component part of the land on which it was established upon the extinction of the right of superficies.

Pursuant to Section 1255 of the Civil Code, in the absence of another agreement between the parties, the owner of the land shall pay the superficiary compensation for the building or other structure (which remains on the land) upon the extinction of the right of superficies by the expiry of the term for which right of superficies was established. The compensation amounts to half the value of the building or other structure at the time of the extinction of the right of superficies, unless otherwise agreed. Pursuant to Section 492 (1) of the Civil Code the value of the building or other structure is its usual price.

The parties may agree on a different amount of compensation, which may be higher or lower than the statutory amount, or on a specific mechanism for calculating the amount of compensation, setting out specific valuation methods and procedures, taking into account, for example, all construction and other costs, wear and tear, yields, inflation rate, etc.

The parties may, of course, even completely exclude the obligation of the owner of the land to pay the compensation to the superficiary; however, they shall respect limits of good morals and public order.

The value of a building or other structure will almost always be a matter of dispute between the parties. In this context, the superficiary may find himself/herself in a rather complicated legal and economic situation where at the same time he/she loses the right of superficies (and in fact loses right to use the building or other structure, including right to lease it and to receive rental payments, and access to it) but no compensation is paid. When the right of superficies is extinguished, the parties will often not even know the amount of compensation to be paid by the owner of the land to the superficiary. All these circumstances should be taken into account by the owner of the land and the superficiary in their contractual arrangements.

The obligation of the owner of the land to pay compensation applies to the extinguishment of the right of superficies as a result of the expiration of the agreed term, but does not apply to the premature extinguishment of the right of superficies as a result of an agreement on termination of the superficies contract.

Although the mortgages created over the right of superficies extinguish together with expiration of initially agreed term of the right of superficies, according to Section 1256 of the Civil Code, the mortgages and other rights created over the right of superficies affect (by the operation of law) the right to compensation. It is a logical consequence of the extinction of the right of superficies. In this case, the original mortgage right over the right of superficies (legally treated as immovable thing) does not (exceptionally) terminate with the termination of the right of superficies, but is being automatically transformed into a pledge over the right to obtain compensation (in fact the Civil Code creates a pledge over the receivable). In this scenario, the original mortgage creditors shall have the right to obtain the amount of compensation or part thereof to cover secured debts.

Summary

The right of superficies is one of the possible ways to place a building on someone else's land. This is a historically proven legal instrument. The content of the Czech Civil Code is sufficient for the effective use of this legal instrument, even though it is probably not possible to expect widespread use of the right of superficies in practice.

The right of superficies entitles a person to erect a building or other structure on land belonging to another person. A building or other structure constructed based on the right of superficies, does not become an inseparable and constituent part of the land, and nor is it considered a separate unit of property. This means that the building or other structure constructed based on the right of superficies may not be separately transferred, sold, donated or mortgaged. Instead, it is understood as a part and a physical extension of the right of superficies.

The right of superficies itself survives the destruction of the building.

It is necessary to distinguish between the building or other structure itself (per se) (as an part of the right of superficies) and the right of superficies (as a legal regime and legal fiction). A building or other structure which has been placed rightfully (which complies with the requirements set forth in the superficies contract) has a double legal regime. On the one hand, it is a part of the right of superficies, but it is also subject to the provisions on immovable property.

It is advisable that the volume of construction is determined in advanced in the superficies contract.

Always temporary in nature, the right of superficies may be granted for a maximum of 99 years. Of course, a shorter term can be contractually agreed upon and it can be extended afterwards. However, when extending the initial term afterwards, the parties must take into account that the entire term may not exceed 99 years. Moreover, the initial term of the right of superficies that was established for a period of less than 99 years may be extended afterwards only with the consent of the persons for whom lower ranking (compared to the right of superficies) encumbrances are registered on the land.

The right of superficies may be established for consideration or even without any consideration; in either case, it is registered with the land registry. While the right of superficies is active, the superficiary as a holder of the right of superficies has the same rights to the building or other structure as owner, and it has a duty to maintain the building or other structure in good condition. The superficiary’s duty to insure the building can also be agreed upon. In some cases, the right of superficies can be established over an existing building.

In the context of a superficies contract, it is always necessary to keep in mind all the essential provisions, which are numerous compared to other types of contracts.

It must be distinguished whether the object of a certain right (lease, tenancy, mortgage, etc.) is the right of superficies or only the building or other structure itself (per se) as a part thereof. In the case of a lease or tenancy (rights of obligations), it is also possible to establish such a right only to the building or other structure as part of the right of superficies. Then the lease or tenancy does not terminate upon the termination of the right of superficies, but passes to the owner of the land together with the building or other structure. In contrast, the real property rights (the rights in rem) established on the right of superficies always expire together with the right of superficies, especially after the expiry of the agreed term.     

After the right of superficies expires, the building or other structure will automatically become an inseparable and component part of the underlying land on which it was placed and in fact the property of the owner of the land. The owner of the land must provide the superficiary with compensation equal to half the building’s value at the time when the right of superficies expired, unless the parties agree otherwise.